Legal Report, January 2017

General Counsel, Jennifer G. Ashton

1. Low Income Home Energy Assistance Program Summary.

The Low Income Home Energy Assistance Program (“LIHEAP”) is a federal program designed to help keep families safe and healthy through initiatives that assist those families with energy costs (heating and cooling). LIHEAP was originally enacted as the Low Income Home Energy Assistance Act of 1981, codified at 42 U.S.C. § 8621-8630 (2008). The statute has been amended several times to reauthorize funding for subsequent years.

Through this program, federal funding is provided to assist low-income residents with: 1) bill payment assistance on home energy bills; 2) energy crises; 3) weatherization or energy efficiency improvements; and 4) energy-related minor home repairs. Several eligibility criteria must be met in order to receive funding. Residents must meet household income limits (e.g. for a one-person household, the maximum annual household income is $17,802; for a two-person household, the maximum annual household income is $24,030). Applicants must also pass an asset test, have residence in non-subsidized housing, or be in receipt of a utility disconnection notice. Additional information, including household income limits, can be accessed at: http://www.floridajobs.org/community-planning-and-development/community-services/low-income-home-energy-assistance-program.

LIHEAP is a block grant with award funds allocated to all 50 states, D.C., Indian tribes or organizations, and the U.S. territories. LIHEAP assistance is provided locally by organizations selected by the state; the federal government does not provide energy assistance directly to the public. The Florida Department of Economic Opportunity is responsible for applying for LIHEAP funding from the federal government, and disbursing funds (as grants) to non-profit agencies and local governments. Applications for LIHEAP are processed through local agencies in Palm Beach County by calling either:

Jupiter: (561) 694-5471

Riviera Beach: (561) 694-7463

Lake Worth: (561) 694-5415

Belle Glade: (561) 996-0660

To apply for assistance, applicants need to call the local agency, with most local agencies requiring an appointment to complete the application (there is no online application process). The local agency assists with application completion, receives applications, determines eligibility, and makes payment directly to the energy company on the applicant’s behalf.

In FY 2016, the Federal Office of Community Service released approximately $3.37 billion in LIHEAP funding nationally, with approximately $68 million allocated in Florida.

LIHEAP is a federal program that provides funds to low-income residents to help offset energy costs. This is different than Property Assessed Clean Energy (“PACE”), which is an energy financing program that provides financing to commercial and residential property owners to make energy efficiency, renewable energy and wind resistance improvements to their properties. PACE is available to all property owners, regardless of income, and provides up front capital to property owners to make these improvements, which is repaid through a non-ad valorem assessment annually on the property owner’s tax bill.

Fifteen (15) Municipalities sued Palm Beach County (the “County”) challenging the method of funding for the Countywide Office of Inspector General (the “OIG Program”). Two (2) Municipalities, the City of Delray Beach and the Village of Wellington, later withdrew from the case. The current funding method, as adopted by the Board of County Commissioners (the “BCC”), authorizes the BCC to set an amount all municipalities must pay for the OIG Program, requires municipalities to budget that amount, and authorizes the County to bill municipalities for that amount. The Municipalities contended that the current funding method violated municipal sovereign immunity principles, was an unlawful tax, and invaded municipal home rule budgetary authority.

On March 16, 2015, the trial court entered a Final Judgment in favor of the County. The Municipalities appealed the case to the Fourth District Court of Appeal. The Florida League of Cities filed an amicus curiae (friend of the court) brief in support of the Municipalities’ position.

On December 21, 2016, a three-judge panel for the Fourth District entered a unanimous opinion in favor of the Municipalities. The Court held that the Municipalities had sovereign immunity over their budgetary decisions. This means that the County cannot sue them for not budgeting certain dollars towards the OIG Program. Sovereign immunity in Florida only can be waived by: (1) general law (e.g. statute adopted by the Florida Legislature); or (2) by written contract. The Court held that the referendum was a local law and not a general law. Therefore, the referendum did not waive the Municipalities’ sovereign immunity. Further, although the Trial Court held that the referendum created a written contract between the County and the Municipalities for OIG Funding, the County conceded at oral argument that this was not correct. The Fourth District agreed and held that the referendum did not create a written contract waiving the Municipalities’ sovereign immunity. Since the Municipalities’ sovereign immunity was not waived, the Court concluded that the County was barred from charging the Municipalities for the OIG Program.

In light if its holding on sovereign immunity, the Court did not decide whether the County’s charges for the OIG Program were an unlawful tax. The Court reversed the Trial Court’s Final Judgment and remanded the case back to the Trial Court for entry of a declaratory judgment in favor of the Municipalities. The Court did note, however, that because this case could impact the legal framework by which municipalities and counties interact throughout the State, it would certify the following question to the Florida Supreme Court for guidance: Does municipal sovereign immunity bar the County from charging municipalities for the OIG Program that was implemented pursuant to a voter approved referendum?

The County did not file a Motion for Rehearing. Therefore, on January 6, 2017, the Mandate was issued at the Fourth District, which officially sent the case back to the Trial Court to enter a Final Judgment in favor of the Municipalities.

The County has until January 20, 2017, to file a Notice to Invoke the Discretionary Jurisdiction of the Florida Supreme Court. We will continue to monitor this case and provide updates.